QUESTION: I was wondering if the Court had some pragmatic concernsunderlying there rationale in Raich. I think that they may have been concerned with the effectiveness of CA regulatory scheme for policing the parameters of the compassionate use act. In reality, individuals with club cards can grow a certain amount in their home. They then take this and sell it back to the clubs for a nice profit. The club then turns this home grown product around and sells it to other individuals with their club card. The key to the kingdom, if you will, is obtaining a club card, which anyone, practically, can obtain for $200 and a trip to a local physician with the excuse of back pain or insomnia. These individuals can take the "home grown" intrastate activity and transport this whereever they like, including an easy trip up I-5 to Washington and Oregon, east to Nevada and southeast to Arizona or New Mexico. I was wondering if CA (Raich) could have evinced stronger evidence ofeffective regulatory mechanisms to control the potential distribution of this home grown product if that evidence would have affected the Court's analysis or at least their ability to rationalize the application of the statute as they did?
ANSWER: There are several different angles to your question. Let me try to take them up in turn:
* My guess is that the justices had very little idea of how things were working here in California on the ground. Not only are they a little clueless about everyday life, but there probably was little in the way of credible sources for this information presented in the briefs. So I doubt that it made much difference.
* Further, and perhaps more importantly, the six justices in the majority appear to believe that, as an analytic matter, the breadth of Congress's enumerated powers does not -- indeed cannot -- depend on what a particular state happens to be doing as a matter of state law. Either Congress has the power or not. How the states choose to use their residuary powers simply does not affect the object of inquiry.
* Supposing the justices did know of these facts on the ground, would it have affected their decision? Perhaps. It is nearly impossible to tell, as they rarely advert to such considerations in their opinions. Nor do they even mention these things in their internal memoranda, such that we likely won't even know once their papers become public. So, in a sense, your question is almost unanswerable, even though it is a real good one.
QUESTION: So when the Court is processing whether the particular statute is within the breadth of Congress's powers, it is taking a broader view analytically of its function and corresponding effect with little consideration to the particular operation of the state mechanism that is the source of the lawsuit.
ANSWERS: So the justices assert in their opinion in Raich. and I tend to believe them.
QUESTION: So in the Raich case, if she would have introduced evidence showing that the regulatory mechanisms in CA were iron clad so that the marijuana grown intrastate would not possibly have reached channels of interstate commerce, then this would have had no effect on the justices' rationale or corresponding decision.
ANSWER: Again, yes. This is what the opinion says. The breadth of federal power cannot logically turn on how states exercise their residuary powers. And I believe this is how the justices sincerley thought about the problem. (And, for what it is worth, I think they are correct to take such an approach.)
QUESTION: I was wondering though if during your time with Justice O'Connor you observed any of these types of discussions entering the discourse amongst the justices, or at least as a point of individual interest or thought?
ANSWER: Sure, every now and again. You hear comments. But again, it is hard to know what is causing what. It is really almost a question of neuroscience. There is a lot of research showing that apparent logical, analytical reasoning is actually driven by deeper, more emotional responses to stimuli. We experience it in our brain as logic, but that is not the part of the brain that lights up in the brain scan. So it is just too difficult to tease out what is driving what. No doubt, these sorts of considerations can matter. Thus, as an advocate, you are well advised to getting as much as possible in front of a judge. You just do not really know what is going to actually affect any decision. And you do not want to insult a judge by suggesting that she might make her decision based on something other than the law.